In A New Jersey Divorce, Must I Attend Mediation If There Is A Restraining Order?

May 30, 2013
By
Edward R. Weinstein

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No. For over the past twenty years as a divorce lawyer, I have been waiting
for a decision from the Superior Court of New Jersey to confirm this “no
brainer” decision. In a recent case, the parties agreed in their
divorce agreement that they (and their respective attorneys) agreed to
attend mediation to resolve any issues that may arise after the divorce
has been concluded. Then, a final restraining order was issued. Therefore,
the New Jersey Appellate decision determined to strike this clause of
the original divorce agreement for obvious safety fears.

Generally, New Jersey Family Courts enforce the provisions of a settlement
agreement so long as they are fair and just. However, just because a provision
may have been fair at the time the settlement agreement was signed does
not necessarily mean that it is still fair. Thankfully for victims of
domestic violence, New Jersey Family Part courts give authority to final
restraining orders over marital settlement agreements.

In
O.P v. L.G-P, ex-wife L.G-P appealed from a post-divorce order dated September 6, 2013.
This order resolved her motion to enforce the child support sections of
a property settlement agreement, that was entered when she and her ex-husband
divorced in 2009. L.G-P. and her ex-husband, O.P, got married in 2006,
and had one child together in 2007. In a property settlement agreement,
they mutually agreed to communicate with each other about their child,
and further agreed to mediation if they could not agree. Both of these
provisions required significant cooperation between the parents.

Within months of the final judgment, however, post-divorce litigation began.
Furthermore, a final restraining order was entered against O.P. under
New Jersey's Prevention of
Domestic Violence Act. After this final restraining order was entered, a motion court enforced
provisions of the property settlement agreement that required mediation
and frequent contact. The New Jersey Appellate Division stated this was
a mistake of law.

O.P agreed to pay L.G-P $ 135 every week in the 2009 property settlement
agreement. This settlement agreement also required him to pay 40 % of
medical expenses, dental and medical insurance, extraordinary expenses
that included costs for school and sport, and a yearly fee to an au pair
service agency, a weekly salary for the au pair, and a yearly stipend
for the au pair’s education. According to the settlement agreement,
the parties mutually agreed that the child support obligations could be
changed in the future in the case of changed circumstances. One stated
change of circumstance was when O.P’s daughter from another marriage
became emancipated. The parent’s also agreed to keep a $ 250,00
life insurance policy with their son as the beneficiary.

The property settlement agreement also stated that is the parents were
not able to solve any disputes in the future, they would go to mediation
“through a mutually agreed upon mediator” before going to
court. Numerous post divorce motions were filed and afterwards a final
restraining order was issued on December 3, 2010.

After this final restraining order was issued, the parents came back to
court to decide a fourth set of motions. Despite the final restraining
order, the court still ordered the parents to resolve their disputes through
mediation. But their mediator ender her private practice soon after, and
as a result O.P had a friend communicate with L.G-P. through email.

On August 1, 2013, another motion was filed by L.G-P., in which she alleged
that her ex-husband owed her medical bills from 2011 in the amount of
$ 102, medical bills from 2012 in the amount of $ 330.67, and dental and
medical insurance premiums from 2011 to 2013 in the amount of $ 783.01.
She further alleged that her ex-husband still owed her $ 562.45 for swim
lessons incurred from 2011 to 2013, and for extracurricular activities
from 2011 to 2013 in the amount of $ 228.86. As proof she submitted receipts,
that she contended she had already provided O.P numerous times through
email and during mediation, that he still refused to pay. In response,
O.P. filed a cross-motion which sought to strike his ex-wife’s motion.
In the motion he stated that he did not in fact hire the mediator, and
that after the mediator closed her practice, his ex-wife would not cooperate
in finding a new one. According to O.P., mediation had been very helpful
in solving problems between the two, and he wanted to continue mediation.

Oral argument has held, after which the court ordered O.P to reimburse
his ex-wife for the bills that he owed her. L.G-P.’s request for
reimbursement of the swim lessons and school expenses were denied without
prejudice because in violation of the terms of the settlement agreement,
she did not communicate with O.P. about these costs before she spent money
on them and further failed to provide her ex-husband with proof of them.
Even though L.G-P. pleaded with the court that her final restraining order
against restricted her ex-husband from communicating with her, the motion
court still asked her to modify the final restraining order to allow email
communication so they could discuss extracurricular activities for their
son. However, L.G-P, did not wish to amend the final restraining order
because she thought O.P. would send her threatening and derogatory and
threatening emails. The court next ordered L.G-P. and O.P. to go to mediation
to solve all of their remaining disputes.

L.G-P took issue with this order, and stated that mediation did not work,
and that the settlement agreement already explicitly stated her ex-husband’s
obligations. In response, the court asked how she expected O.P. to give
her proof with the final restraining order still in place. She offered
that his lawyer could send them to her, or in the alternative, a police
officer could give delivery them to her during parenting-time transfers.
The court did not accept these suggestions and ordered her to resolve
any disputes they may have through mediation. As a result, L.G-P. appealed
the New Jersey Appellate Division.

The New Jersey Appellate Division started its opinion by stating that the
parties’ settlement agreement was flawed because instead of specifically
including their children’s extracurricular activities in the monthly
child support payment, they left it ambiguous to the point where they
had to constantly pay different amounts. This forced them to be in constant
contact with each other, and required them to cooperate at a level that
divorced couples normally did not. This built up animosity that eventually
led to a final restraining order.

In regards to this final restraining order, the New Jersey Appellate Division
stated that if a final restraining order has a restriction barring contact
between parties, and the victim of the domestic violence wishes not to
partake in such contact, then a judge may not, in future litigation, order
the victim to modify a no-contact restriction. The appellate panel cited
the authority of the New Jersey Supreme Court, which had held that in
a domestic violence case, a judge may “grant any relief necessary
to prevent future abuse.” Therefore, the judge in the post-divorce
motion at issue, should have respected the previous judge’s authority
and should not have suggested to the victim that she should modify the
language of the final restraining order, that was ordered to protect her.
When a final restraining order is issued, the issuing judge must make
a finding that order, and the protective relief it granted, is necessary
to protect the victim. Knowing this, the motion judge should have also
known that L.G-P. would have been in danger without the protection of
the final restraining order, and thus should not have ordered her to have
more contact with her ex-husband.

Furthermore, the New Jersey Appellate Division found that the motion court
should not have ordered L.G-P. and O.P. to go to resolve their disputes
through mediation. The appellate panel went on to explain that while a
court rule and directive exclude the mediation of certain issues if a
final restraining order in power, they do not cover the situation when
an already existing property settlement agreement requires both mediation
and parental communication. While divorce litigants can mutually agree
to ignore legal rights in a settlement agreement, and a court should generally
enforce what is mutually agreed to in a property settlement agreement,
reasonable provisions can become unreasonable when a final restraining
order is entered. In fact, mediation can become unreasonable and actually
unsafe when a final restraining order has been issued. The bargaining
position of the victim could be hindered by the history of past violence.
At the time of mediation, people do not think that a final restraining
order will be issued, therefore in the interest of public policy, mediation
should not be ordered after a final restraining order has been issued,
even if to enforce a property settlement agreement. Therefore the New
Jersey Appellate Division dismissed the previous order of the motion court
and ordered that a new hearing take place where the court issue a child
support order that covers each parents financial responsibilities without
ordering the communication required in the property settlement agreement.

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